Criminal Law

Dist. Ct. erred in sentencing defendant to 144-month term of incarceration on mail and wire fraud charges stemming from scheme to submit falsified loan applications to lenders where said sentence was based in part on two-level increase for abuse of position of trust under section 3B1.3 of USSG. Abuse-of-trust enhancement did not apply where govt. failed to establish that instant lenders had special relationship of trust with defendant, and that record otherwise showed that lenders and defendant had ordinary arm's length commercial relationship that did not rule out possibility that lenders had failed to do their own due diligence with respect to loan documents submitted by defendant.

Dist. Ct. did not err in sentencing defendant to 261-month term of incarceration on drug distribution charges after attributing 537.38 grams of cocaine base as uncharged relevant conduct based on testimony of police officer who relayed statements of two individuals who claimed that they had made series of purchases of cocaine base from defendant. Ct. rejected defendant's arguments that Dist. Ct. should have presumed that instant hearsay statements from said individuals were unreliable since they were non-testifying co-conspirators, and instead found that said presumption, while valid for similar testimony offered during trial, was not applicable to instant statements admitted during sentencing proceeding. Moreover, subject statements were reliable given fact that said statements were consistent with other statements given to police, and that one individual made unrebutted claim that she was frequent customer of defendant.

In prosecution on drug conspiracy charge, Dist. Ct. erred in admitting for truth of matter asserted audiotapes of conversations between defendant and his wife in which wife told defendant that defendant's lawyer had advised that defendant should plead guilty to charged offense, even though said tapes were admissible as prior inconsistent statement to wife's testimony that defendant was innocently at scene of crime at time of arrest. However, any error was harmless given evidence of defendant's flight at scene of arrest, his cell phone logs demonstrating defendant's participation in details leading up to attempted drug purchase, as well as $23,000 found in secret compartment of wife's car. (Dissent filed.)

In sentencing proceeding in which defendant received 181-month term of incarceration on multiple narcotics and weapons charges, defendant's counsel was not ineffective for failing to object to two-level enhancement based on defendant's possession of .22-caliber rifle with obliterated serial number, even though govt. could not establish that said rifle had ever moved in interstate commerce. No error occurred where ability to enhance defendant's sentence based on uncharged conduct does not turn on whether said conduct could have been prosecuted in federal court, and record otherwise contained meaningful link between defendant's possession of rifle, which was located near drugs, and instant charged offenses.

Dist. Ct. did not err in sentencing defendant to 51-month term of incarceration on mail fraud charge even though Dist. Ct. declined to grant defendant's request for lower offense level arising out of his acceptance of responsibility based on his guilty plea. Record showed that defendant violated his pretrial release conditions by traveling to St. Louis and entering into fraudulent residential sales contract for $2.6 million home, and said violation constituted continuation of criminal conduct for purposes of denying defendant's request for reduction of his offense level.